Category Archives: Water Quality

Reviewing the SWCB’s Actions (or Lack Thereof)

Writing in the Virginia Mercury on March 5, 2019, Robert Zullo flatly states, “Citizen oversight of Virginia’s environmental regulations increasingly looks like a farce.” After an hours-long closed session on March 1, 2019, the Virginia State Water Control Board emerged with a unanimous decision to rescind its earlier call for a hearing on rescinding the Mountain Valley Pipeline certification. When called on to explain the decision, Board members fumbled through a few flimsy explanations and excuses before adjourning the meeting and fleeing the room behind a wall of state troopers. According to Zullo, “One audience member loudly pointed out that the cops would be more useful lined up at the base of mountains in southwest Virginia to stop the mud running off the pipeline job sites.”

Despite numerous well-documented Virginia violations and the prior poor compliance history of the construction contractor, continues unabated, MVP construction continues unabated, fouling private property and waterways with uncontrolled sediment.

Zullo says of the SWCB, “Their logic, evidently the best they could come up with despite so much time to get their story straight, went something like this:

  • We do not have the authority revoke the certification (which is odd, because the certification itself says “This certification is subject to revocation for failure to comply with the above conditions after a proper hearing.”)
  • If we did revoke the certification that we don’t have the authority to revoke, we would lose all the conditions that we placed in that certification (which are obviously doing a bang-up job of preventing environmental damage).
  • If we revoke the certification we don’t have the authority to revoke, the Federal Energy Regulatory Commission will disregard the action and allow construction to continue anyway.”

Zullo’s article concludes, “Between the water board debacle and Gov. Ralph Northam’s interference with the air board, removing two members seemingly to ensure that the board didn’t reject a crucial permit for a compressor station that is part of Dominion Energy’s Atlantic Coast Pipeline, citizen oversight of Virginia’s environmental agency and the regulations it enforces is looking increasingly like a sad farce. To perform their proper role, they need to be determined, independently well-versed on the issues and, perhaps most importantly, unafraid of upsetting the apple cart in a state where going along to get along when big business is involved is par for the course. Lately, they don’t seem up to the job.”

Read the full article here.

An editorial in the March 7, 2019, Roanoke Times says Something’s not right with water board, and, quoting Sokolow, asks:

  • “‘If Virginia had no authority to revoke its Section 401 permit once it issued it in December 2017, why did Mark Herring’s office approve of language in that permit expressly saying that Virginia could revoke the permit?’
  • “‘If it is so obvious that federal law prevents Virginia from revoking the MVP permit, why did it take Mark Herring 14 months to discover that the advice he gave in 2017 was not valid?’
  • And, finally: ‘Why have the board and Mark Herring not lifted a finger to do what they clearly do have the power to do, and issue a stop work order — or seek a court injunction to do so? If Virginia’s stop work statute does not apply to a situation where a pipeline company is under criminal investigation, has been sued by the state for more than 300 documented violations, and there is a record of ongoing violations, then when would it ever apply?'”

The editorial concludes, “Those seem good questions — which deserve good answers. Or even any answer.”

The Water Board Did What?!

Back in December, new member of the Virginia State Water Control Board, James Lofton, made a motion to explore revoking the SWCB permit for the Mountain Valley Pipeline. Lofton was appointed to the Board by Governor Ralph Northam following his removal of Roberta Kellam, after she raised serious questions about the damage being wrought by MVP to the water and land resources of southwest Virginia. Lofton’s motion passed the seven-member Board on a 4-3 vote. Eleven weeks later – weeks during which MVP construction continued, with continued damage due to inadequate erosion and sedimentation control – the SWCB finally had a meeting to discuss the possible process for revoking the permit.

Before the March 1, 2019, meeting, MVP sent a letter to the Department of Environmental Quality in which, according to Blue Virginia, “MVP not only objected to the Board commencing a revocation process, but argued that the Board had no authority to do so (“Unilateral action by the board at this time cannot amend or invalidate that license or otherwise block construction”), and that MVP would sue the Board if it went any farther. In a stunning demonstration of corporate arrogance, MVP told the Board that if Virginia actually revoked the state permit, MVP would simply ignore the action and continue construction anyway as long as it had a federal permit.”

Attorneys representing 10 local, state, and regional organizations (including the Southern Environmental Law Center and the Chesapeake Bay Foundation) sent a letter on February 28 to the members of the Virginia State Water Control Board, urging the Board to start promptly a process to revoke the water quality certification issued for the Mountain Valley Pipeline (MVP). At the same time, the attorneys strongly urged the Board to use enforcement tools available to it to stop work on the pipeline while the revocation process goes forward. Responding to claims in the MVP letter, the attorneys stated, “The State Water Control Board (Board) has the authority to revoke the water quality certification for upland activities that it issued to Mountain Valley Pipeline, LLC (MVP). The violations MVP has committed and the damage it has done easily meet and exceed the thresholds defined in Virginia law upon which revocation may be based.” The letter also asked that “the Board to take all possible steps to stop work on this project immediately.” The permit itself expressly says that “[t]his Certification is subject to revocation for failure to comply with the above conditions after a proper hearing.”

At the March 1 meeting, a junior attorney from Herring’s office told the Board that MVP was right and that the Board had no authority to revoke MVP’s permit. The junior attorney gave this “advice” despite the fact that Herring’s office had probably written (and had certainly approved) the permit, with language stating that the SWCB does have the authority to revoke it.

The SWCB went into a four-hour closed session shortly after convening their meeting. Virginia Mercury reported that when the public meeting finally resumed, Lofton said “he had deep concerns about the pipeline project’s erosion and sediment control measures but was also worried the state couldn’t revoke the permit. ‘Based on advice of counsel and statute, I do not think the board has the authority to revoke this certification.'” He continued, “The board is very sympathetic to landowners and those opposed to the pipeline, but I’m deeply concerned we would lose the 16 conditions that are in the 401 certification if we attempt to revoke the certification. I simply cannot find the board has the authority to revoke this permit.”

Chairwoman Heather Wood tried to further explain, saying revocation of the permit by the board would “handcuff” the state’s ability to impose additional requirements on the project – and then adjourned the meeting.

In a DEQ statement released after the meeting, Wood said leaving the certification “puts additional protections in place that would not be as strong under sole federal oversight.” Removing it would have “jeopardized the commonwealth’s oversight” of the pipeline project, she added. “This was a unique situation that required time to ensure the proper legal process was and continues to be followed,” Wood said. “The board extensively reviewed all available options to continue enforcement and monitoring of this project to ensure compliance with the conditions of the 401 certification and protection of water quality.”

What happened? MVP told DEQ that they would continue with construction regardless of whether their permit was or was not revoked, and the SWCB decided that they would leave the permit in place. It remains to be seen whether SWCB and DEQ will enforce any of the permit conditions, or whether the suit brought in early December against MVP by Attorney General Mark Herring will have any effect on a corporation that says it will continue to do whatever it wants.

New ABRA Slide Presentation on Environmental Folly of ACP


Allegheny-Blue Ridge Alliance’s Pipeline CSI program has developed a new slide presentation describing the unavoidable impact of the ACP on water resources and the failure of regulatory oversight. The presentation, Pending Construction of the ACP in the Virginia Mountains: Empty Assurances, compares government and company promises with the realities of environmental review and enforcement and the record of ACP construction in West Virginia. The presentation is available for download here, as a PowerPoint or as a PDF with slide notes.

Virginia Water Board Urged to Revoke MVP Water Certification

From ABRA Update 219 on February 28, 2019:

Attorneys representing 10 local, state and regional organizations sent a letter on February 28 to the members of the Virginia State Water Control Board, urging the Board to start promptly a process to revoke the water quality certification issued for the Mountain Valley Pipeline (MVP). At the same time, the attorneys strongly urge the Board to use enforcement tools available to it to stop work on the pipeline while the revocation process goes forward. The Water Control Board is to meet March 1 at 10 am to discuss how to proceed with considering a possible revocation of the MVP certification, a decision the Board made over two months ago. A live streaming of the Water Board meeting will be available at http://www.facebook.com/vasierraclub.

The attorneys’ letter was written in response to a letter MVP sent to Department of Environmental Quality Director David Paylor on February 12, and subsequently given to Water Board members, claiming that a “cooperative effort [between MVP and DEQ] on the Project has achieved a high level of environmental protection and overall is in very good order.” The attorneys’ letter takes issue with that view:

The State Water Control Board (Board) has the authority to revoke the water quality certification for upland activities that it issued to Mountain Valley Pipeline, LLC (MVP). The violations MVP has committed and the damage it has done easily meet and exceed the thresholds defined in Virginia law upon which revocation may be based.

We strongly urge the Board to order the Department of Environmental Quality (DEQ) to schedule and issue notice for a formal hearing by a specific date not to exceed ten days from the date of your decision. The delay that has followed the Board’s order to DEQ to take those steps, issued on December 13, 2018, has already allowed harm to the environment and people to continue unabated for eleven weeks. In addition to proceeding to a revocation hearing for the water quality certification, we ask the Board to take all possible steps to stop work on this project immediately.

Organizations represented by the signers of the letters include six ABRA members: Appalachian Mountain Advocates, Appalachian Voices, Chesapeake Climate Action Network, Southern Environmental Law Center, Sierra Club and Wild Virginia, plus Preserve Floyd, Chesapeake Bay Foundation, Preserve Bent Mountain, Preserve Craig and POWHR Coalition (Protect Our Water, Heritage Rights).

Urge State Delegates to Oppose Paylor Confirmation


There are serious ethical and conduct issues surrounding Mr. Paylor’s work, especially in the permitting processes connected with the Mountain Valley and Atlantic Coast Pipelines. Act now to oppose David Paylor’s confirmation as Director of the Virginia Department of Environmental Quality! The vote on his confirmation reached the Senate floor and the press on January 21, 2019 (Six senators vote against Northam’s pick to lead environmental agency).

While the House of Delegates may not act on this until after cross over/Feb. 5, they could act at any time. They could act today. Call and email your own Delegate to the Virginia Assembly (Who’s my Legislator? ) and as well as members of the Privileges and Elections Committee. Ask them to oppose the confirmation vote on the appointment of David Paylor as Director of Virginia Department of Environmental Quality as designated in Senate Joint Resolution No. 292 (offered Jan 9, 2019) confirming appointments by the Governor of certain persons communicated May 17, 2018.

Talking points/Sample letter/email here.

Water Control Board Votes to Reconsider MVP Certification

At their regular meeting on December 12, 2018, The State Water Control Board voted 4-3 to initiate the formal hearing process to consider revoking the 401 Certification for the Mountain Valley Pipeline.  See Roanoke Times coverage here.

Please recall that when Northam removed the two members of the Air Control Board who had questioned the air permit for the Union Hill compressor station, he also removed two Water Control Board members who had questioned water permit certification for the pipelines. One of Northam’s new appointments to the Water Board, James Lofton, made the motion to reconsider the MVP certification in response to extensive public comment regarding ongoing MVP damage, and members Nissa Dean, Paula Jasinki (also new), and Robert Wayland joined him in voting to reconsider. Voting against reconsideration were Heather Wood, Lou Ann Wallace and Tim Hayes.

Although the MVP’s nationwide permit was revoked months ago, the Department of Environmental Quality took no action to shut down pipeline construction. Just a week ago, Attorney General Mark Herring filed suit against MVP for their repeated environmental violations – hundreds of violations.

Writing in an op-ed in a Virginia Mercury article published earlier in the day, Roberta Kellum, one of the Water Board members Northam removed, wrote of Herring’s suit that “After reading the complaint, there should be no doubt about the validity of the concerns raised by the public about water quality impacts from fracked gas pipeline construction projects and the associated water quality certifications issued by the State Water Control Board. What the complaint doesn’t tell us, however, is how the DEQ allowed so many violations to occur unabated, for months and months, or how major erosion and sediment control structures failed in spite of pre-approved plans.” She adds, “And why, in the face of so many systemic failures in complying with the water quality certification, didn’t DEQ issue a stop work order to ensure that violations were addressed to prevent any degradation of water quality? Having faced a justifiably irate and frustrated public repeatedly as a State Water Control Board member over the past two years, I hope Gov. Northam will finally appreciate the validity of public concerns for the waters of the commonwealth.”

Yes, indeed, it is certainly time for the State Water Control Board to reconsider their certification of the disastrous Mountain Valley Pipeline. Our thanks to the Board members who voted to do so.